Misconduct by both complainant and accused

If an employee files a complaint about a supervisor but both have acted inappropriately, can the employer discipline or dismiss the employee for their misconduct?

Misconduct by both complainant and accused
Stuart Rudner

Question: If an employee files a complaint about a supervisor but both are found to have acted inappropriately, can the employer discipline or dismiss the employee for their misconduct?

Answer: As is often the case in law, the answer is: It depends. What is the nature of the misconduct? Does the employer have policies in place? If so, what do the policies say, and are employees aware of such policies? Would imposing discipline or dismissal constitute unlawful reprisal and/or discrimination? Is the dismissal with or without cause?

Employers may have policies in place that provide them with the flexibility and discretion to impose discipline for misconduct, even if the supervisor had also acted inappropriately. However, the policies may be restrictive in terms of the discipline that can be imposed. For instance, if there is a strict progressive discipline policy requiring a verbal warning for a first offence, regardless of the nature of the misconduct, then the employer would be in breach of its own policy by imposing a written warning for a first offence.

Even if the policy is clear that discipline can be imposed, employers cannot discriminate against an employee on the basis of any protected ground under the applicable human rights legislation such as disability, sex or family status. Discrimination would be found even if the protected ground was part of the reason for the discipline or dismissal. In addition, employers cannot engage in unlawful reprisal against employees — for example, a worker cannot be penalized for attempting to assert their rights under health and safety legislation. If the employee complains about a supervisor due to alleged breach of health and safety legislation and then the employee is disciplined or dismissed, that could constitute unlawful reprisal.

With respect to dismissals, they can be with cause or without cause. Generally speaking, employers can let go of employees at any time for any reason. Assuming that there is no breach of human rights, health and safety or other legislation, the only question is whether the employee is getting the severance to which they are entitled. However, when it comes to just cause for dismissal, the threshold is high. Each case will be decided based on its particular facts and a contextual analysis is required to determine whether or not the employer had just cause for dismissal. Put simply, the punishment must fit the crime and, in most cases, simply engaging in misconduct will not warrant dismissal for cause. However, as Stuart Rudner often says: Just cause is not a lost cause. Courts and decision-makers will uphold dismissal for cause where warranted.

Employers should be careful and not make assumptions that expose them to potentially significant liability. In many cases, conducting an investigation before dismissal will be a critical step. Employers should also ensure that they have carefully drafted policies in the workplace to protect the organization. The employees should be trained on the policies, the policies should be applied consistently and violators should be disciplined as appropriate.

Stuart Rudner is the founder of Rudner Law, an employment law firm in Toronto. He can be reached at [email protected] or (416) 864-8500. This article was written with the assistance of Nadia Zaman, an associate at Rudner Law. She can be reached at (416) 864-8503 or [email protected]

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